Exhibit 10.09
LETTERHEAD OF GENTEK INC.
April __, 1999
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Registration Rights Agreement
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Reference is made to the Registration Rights Agreement, dated as of
April __, 1999 (the "Agreement") between The General Chemical Group Inc. ("GCG")
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. Capitalized terms used in this letter without definition
have the meanings given to them in the Agreement.
GenTek Inc. hereby acknowledges and agrees that (i) all shares of
Common Stock and Class B Common Stock of GenTek distributed by GCG to the
Stockholder and its Permitted Transferees in connection with the Spinoff
constitute Registrable Securities, (ii) GenTek is bound by and subject to the
terms and conditions of this Agreement with respect to such Registrable
Securities to the same extent as the Company and (iii) GenTek will comply with
all the provisions of the Agreement as if such provisions contained "GenTek" in
each instance where the word "Company" appears.
Sincerely,
GENTEK INC.
By: _________________________
Name:
Title:
Receipt Acknowledged:
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REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of April __, 1999, between
The General Chemical Group Inc., a Delaware corporation (the "Company"), and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, residing in the State of New Hampshire (the "Stockholder").
RECITALS
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A. The Stockholder holds or controls, directly and through family
trusts (the "Family Trusts") of which he is the settlor and a co-trustee or of
which he is the settlor and his spouse is the sole trustee with investment and
voting discretion, a total of 53,000 shares of Common Stock, par value $.01 per
share (the "GCG Common Stock"), of the Company and 9,758,421 shares of Class B
Common Stock, par value $.01 per share (the "GCG Class B Stock"), of the
Company.
B. The Company proposes to separate its manufacturing and performance
products businesses through a spinoff (the "Spinoff") of its wholly-owned
subsidiary, GenTek Inc., a Delaware corporation ("GenTek"), through a
distribution of the stock of GenTek to the stockholders of the Company on a
share-for-share basis. The Company has obtained a private letter ruling from the
Internal Revenue Service (the "IRS") to the effect that this distribution of the
stock of GenTek generally will be tax-free to the Company and its stockholders
for U.S. federal income tax purposes.
C. In order to facilitate the treatment of the Spinoff as a tax-free
transaction and the compliance with the requirements of the Internal Revenue
Code and the IRS pertaining to the IRS ruling, the Company desires that the
Stockholder and the Family Trusts convert a total of 5,800,000 GCG Class B Stock
into GCG Common Stock, which would result in a reduction of the voting power of
the shares of the Company held by the Stockholder and the Family Trusts.
D. In order to induce the Stockholder and the Family Trusts to
convert the GCG Class B Stock into GCG Common Stock, the Company desires to
grant the Stockholder and its Permitted Transferees (as defined in the
certificate of incorporation of the Company), including the Family Trusts,
certain registration rights regarding their stock, all upon the terms and
conditions set forth herein.
E. Capitalized terms used in this Agreement have the meanings given
to them in Section 3.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Section 1. Registration under the Securities Act.
Section 1.1. Required Registrations. (a) Request. Upon the terms and
subject to the conditions of this Agreement, at any time during the period
beginning on the date hereof and ending on April 1, 2004 (the "Registration
Period"), upon the written request of a majority in interest of the Holders (the
"Requesting Holders") requesting that the Company effect registration under the
Securities Act of all or a specified number of Registrable Securities (which
request shall also specify the intended method or methods of disposition
thereof), the Company shall use its best efforts to effect the registration
under the Securities Act of the Registrable Securities that the Company has been
so requested to register by the Requesting Holders, for disposition according to
the intended method or methods of disposition specified by the Requesting
Holders (including a shelf registration) to the extent required or deemed
appropriate by the Requesting Holders to permit the disposition (according to
the intended method or methods thereof specified by the Requesting Holders) of
the Registrable Securities to be registered; provided that the Company shall not
be required to effect any registration pursuant to this Section 1.1 after three
registrations requested by the Requesting Holders pursuant to this Section 1.1
have been effected; provided, further, that the Company shall not be required to
effect a registration pursuant to this Section 1.1 prior to 90 days following
the date that a registration pursuant to this Section 1.1, or a registration in
which the Holders were entitled to participate pursuant to Section 1.2, has been
effected. If the Requesting Holders request registration of their Registrable
Securities on a delayed or continuing basis under Rule 415 under the Securities
Act (or any successor or similar rule), the Company shall keep such registration
continuously effective for at least 36 months (or such shorter period specified
by the Requesting Holders) following the date on which such registration
statement is declared effective or until all such Registrable Securities
registered thereunder are sold, whichever is shorter.
(b) Withdrawal. The Requesting Holders shall have the right to
request withdrawal of any registration statement filed pursuant to this Section
1.1 (and the Company shall so withdraw such registration statement) prior to the
effectiveness of such registration statement.
(c) Effective Registration Statement. A registration requested
pursuant to this Section 1.1 shall not be deemed to be effected (i) if a
registration statement with respect thereto does not become effective under the
Securities Act (including because of a withdrawal of such registration statement
by the Requesting Holders prior to the effectiveness thereof pursuant to Section
1.1(b)), (ii) if, after it has become effective, such
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registration is interfered with for any reason by any stop order, injunction or
other order or requirement of the Commission or any other Governmental
Authority, and the result of such interference prevents the Requesting Holders
from disposing any of the Registrable Securities proposed to be sold according
to the intended methods of disposition or the Company exercises its rights under
Section 1.4 and delays the proposed distribution of any Registrable Securities
for more than 90 days and the Requesting Holders determine not to sell
Registrable Securities pursuant to such registration as a result of such delay,
(iii) if the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with any underwritten offering
are not satisfied or waived with the consent of the Requesting Holders holding
more than one-half of the Registrable Securities that were to have been sold
thereunder, other than as a result of any breach by any Requesting Holder or any
underwriter of its obligations thereunder or hereunder, or (iv) if, because of
inclusion in such registration of securities held by the Company or a Person or
Persons other than the Requesting Holders (including pursuant to Section
1.1(g)), more than half of the Registrable Securities requested by the
Requesting Holders for such registration are not registered.
(d) Registration Statement Form. Registration statements filed under
this Section 1.1 shall be on such form of the Commission as shall be selected by
the Company and approved by the Requesting Holders (which approval shall not be
unreasonably withheld), and as shall permit the disposition of the subject
Registrable Securities according to the intended method or methods of
disposition specified by the Requesting Holders. The Company agrees to include
in any such registration statement additional information or material reasonably
requested by the Requesting Holders.
(e) Expenses. The Company shall pay all Registration Expenses in
connection with any registration requested pursuant to this Section 1.1.
(f) Selection of Underwriters. If a registration pursuant to this
Section 1.1 involves an underwritten offering, the managing or lead underwriter
or underwriters shall be selected by the Requesting Holders with the approval of
the Company, which approval shall not be unreasonably withheld.
(g) Priority in Requested Registrations. If a registration pursuant
to this Section 1.1 involves an underwritten offering, and the managing or lead
underwriter or underwriters advise the Requesting Holders in writing (a copy of
which shall be provided to the Company by the Requesting Holders) that, in its
or their opinion, the number of securities requested to be included in such
registration by the Requesting Holders, the Company and any other Person exceeds
the number that can be sold in such offering within a price range reasonably
acceptable to the Requesting Holders, the Company shall include in such
registration the number of securities that the Requesting Holders are so
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advised can be sold in such offering, at the option of the Company, either: (i)
(x) first, the Registrable Securities proposed to be included by the Requesting
Holders, (y) second, the securities requested to be included in such
registration by the Company, (z) third, the securities of any other Person or
Persons proposed to be included in such registration; or (ii) (x) first, the
Registrable Securities proposed to be included by the Requesting Holders and the
securities requested to be included in such registration by the Company, each
pro rata in accordance with the number of Registrable Securities proposed to be
included by the Requesting Holders and the number of securities so proposed to
be included by the Company, respectively, and (y) second, the securities of any
other Person or Persons proposed to be included in such registration. If the
Company selects the option set forth in clause (ii) of the preceding sentence,
the Company shall pay the fees and expenses of counsel to the Requesting Holders
(in addition to Registration Expenses) if, due to the Company's participation on
a pro rata basis with the Requesting Holders, more than one-half of the
Registrable Securities requested by the Requesting Holders for such registration
are not registered.
(h) Inconsistent Rights. The Company shall not grant to any Person
any registration or other rights inconsistent with the provisions of this
Section 1.1.
Section 1.2. "Piggy-Back" Registration Rights. (a) Right to
Participate. If the Company at any time proposes to register any of its
securities under the Securities Act (other than by a registration on Form S-4 or
S-8 or any successor or similar forms or filed in connection with an exchange
offer or any offering of securities solely to the Company's existing
stockholders, and other than pursuant to Section 1.1), whether or not for sale
for its own account, the Company shall give prompt written notice to each Holder
of its intention to do so and of the rights of the Holders under this Section
1.2. Upon the terms and subject to the conditions of this Agreement, during the
Registration Period, upon the written request of any Holder (the "Participating
Holder") made within 30 days after the delivery of any such notice by the
Company (which request shall specify the Registrable Securities intended to be
disposed of by any Participating Holder and the intended method or methods of
such disposition), the Company shall use its best efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by such Participating Holders, to the
extent required or deemed appropriate by such Participating Holders to permit
the disposition (in accordance with the intended methods thereof specified by
the Participating Holders), of the Registrable Securities so to be registered.
If, at any time after giving written notice of its intention to register any
such securities and prior to the effective date of the registration statement
filed in connection with such registration, the Company determines for any
reason not to register or to delay registration of such securities, the Company
may, at its election, give written notice of such determination to each
Participating Holder and, thereupon, (i) in the case of a determination not to
register, the Company need not register
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any Registrable Securities in connection with such registration (but shall, in
such case, pay the reasonable fees and expenses of counsel to the Participating
Holders in addition to the Registration Expenses), without prejudice, however,
to the rights of the Participating Holders to request that such registration be
effected as a registration under Section 1.1, and (ii) in the case of a
determination to delay registering, the Company may delay registering any
Registrable Securities for the same period as the delay in registering such
other securities. No registration effected under this Section 1.2 shall relieve
the Company of its obligation to effect any registration upon request under
Section 1.1.
(b) Priority in Piggy-Back Registration Rights. If a registration
pursuant to this Section 1.2 involves an underwritten offering and the managing
or lead underwriter or underwriters advises the Company in writing (a copy of
which shall be provided by the Company to each Participating Holder) that, in
its or their opinion, the number of securities requested and otherwise proposed
to be included in such registration exceeds the number that can be sold in such
offering within a price range reasonably acceptable to the Company, the Company
shall include in such registration, up to the number of securities that the
Company is so advised can be sold in such offering, (i) if the registration is a
primary registration on behalf of the Company, (x) first, the securities
proposed to be included by the Company, and (y) second, the Registrable
Securities requested to be included in such registration by the Participating
Holders and the securities of other Persons requested to be included in such
registration, each pro rata in accordance with the number of Registrable
Securities so requested to be included and the number of securities proposed to
be included by such other Persons, respectively, and (ii) if the registration is
a secondary registration on behalf of a Person or Persons other than a Holder,
the securities proposed to be registered by such other Person or Persons and the
Registrable Securities requested to be included in such registration by the
Participating Holders, each pro rata in accordance with the number of securities
proposed to be registered by such Person or Persons and the number of
Registrable Securities so requested to be included, respectively.
(c) Inconsistent Rights. The Company shall not grant to any holder of
its securities any registration rights inconsistent with the provisions of this
Section 1.2.
(d) Expenses. The Company shall pay all Registration Expenses in
connection with any registration requested pursuant to this Section 1.2.
(e) Selection of Underwriters. If an incidental registration pursuant
to this Section 1.2 involves an underwritten offering, the managing or lead
underwriter or underwriters shall be selected by the Company with the approval
of the Requesting Holders, which approval shall not be unreasonably withheld.
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Section 1.3. Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities as provided in Sections 1.1 and 1.2, the Company shall as
expeditiously as possible:
(a) prepare and as soon thereafter as possible file with the
Commission the requisite registration statement to effect such
registration and thereafter use its best efforts to cause such
registration statement to become effective, provided that before filing
such registration statement or any amendments thereto, the Company shall
furnish to the counsel to the Selling Stockholders copies of all such
documents proposed to be filed, which documents will be subject to the
review of such counsel;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement continuously effective for a period of either (i) not less than
120 days (subject to extension pursuant to the last paragraph of this
Section 1.3) or, if such registration statement relates to an underwritten
offering, such longer period as in the opinion of counsel for the
underwriters a prospectus is required by law to be delivered in connection
with sales of securities by an underwriter or dealer; or (ii) such shorter
period as is required for the disposition of all of the securities covered
by such registration statement in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such
registration statement (but in any event not before the expiration of any
longer period of effectiveness required under the Securities Act), and to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement until
such time as all of such securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers thereof
set forth in such registration statement;
(c) furnish to each seller of securities covered by such registration
statement such number of conformed copies of such registration statement
and of each such amendment and supplement thereto (in each case including
all exhibits), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the Securities
Act, and such other documents in order to facilitate the disposition of
such securities owned by such seller in accordance with such seller's
intended method of disposition, as such seller may reasonably request, but
only during such time as the Company shall be required under the
provisions hereof to cause such registration statement to remain current;
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(d) use its best efforts to register or qualify securities covered by
such registration statement under such other securities or blue sky laws
of such jurisdictions in the United States as each seller thereof shall
reasonably request, to keep such registration or qualification in effect
for so long as such registration statement remains in effect, and to take
any other action which may be reasonably necessary to enable such seller
to consummate the disposition in such jurisdictions in the United States
of the securities owned by such seller, provided that the Company shall
not for any such purpose be required to (i) qualify generally to do
business as a foreign corporation in any jurisdiction where it would not
otherwise be required to qualify but for the requirements of this
subsection (d), (ii) consent to general service of process in any such
jurisdiction, (iii) subject itself to taxation in any such jurisdiction or
(iv) conform its capitalization or the composition of its assets at the
time to the securities or blue sky laws of such jurisdiction;
(e) use its best efforts to cause all securities covered by such
registration statement to be registered with or approved by such other
Governmental Authorities as may be necessary by virtue of the business and
operations of the Company to enable the sellers to consummate the
disposition thereof;
(f) furnish to each Selling Stockholder a signed counterpart,
addressed to such Selling Stockholder (and the underwriters, if any), of
(i) an opinion of counsel for the Company, dated the effective
date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), in form and substance
reasonably satisfactory to such Selling Stockholder, and
(ii) a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), in form and substance reasonably
satisfactory to such Selling Stockholder, signed by the independent
public accountants who have certified the Company's financial
statements included in such registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities;
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(g) furnish to each such Selling Stockholder at least five business
days prior to the filing thereof a copy of any amendment or supplement to
such registration statement or prospectus (other than any amendment or
supplement in the form of a filing which the Company is required to make
pursuant to the Exchange Act) and not file any such amendment or
supplement to which any such Selling Stockholder shall have reasonably
objected on the grounds that, in the opinion of counsel to such Selling
Stockholder, such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act;
(h) notify each Selling Stockholder, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act,
upon discovery that, or upon the discovery of the happening of any event
as a result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances under which they were made, and at the request of any
such Selling Stockholder promptly prepare and furnish to such Selling
Stockholder a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they
were made;
(i) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering a period of at least twelve months beginning after the effective
date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act;
(j) cooperate in the conduct of such due diligence relating to the
Company as the Selling Stockholders and the managing or lead underwriter
or underwriters (including their counsel and other authorized
representatives) may reasonably request and is customary for such
offering, including by making available for inspection the Company's
financial and other records and pertinent corporate and other documents as
shall be reasonably necessary or appropriate to enable such persons to
conduct their due diligence and by causing the Company's officers and
personnel to supply information and respond to all inquiries reasonably
requested by such persons in connection with their due diligence.
(k) use its best efforts to provide customary assistance to the
underwriters in their selling efforts and presentations to prospective
investors, including by making
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available the Company's officers and personnel for presentations to and
meetings with prospective investors; and
(l) use its reasonable efforts to cause all such Registrable
Securities covered by such registration statement to be listed on a
national securities exchange (if such Registrable Securities are not
already so listed), and on each other securities exchange on which similar
securities issued by the Company are then listed, if the listing of such
Registrable Securities is then permitted under the rules of such exchange.
The Company may require each Selling Stockholder to furnish the
Company in writing for inclusion in the registration statement such information
regarding such Selling Stockholder and the distribution of such Registrable
Securities being sold as the Company may from time to time reasonably request.
Each Selling Stockholder agrees that upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
1.3(h), such Selling Stockholder shall forthwith discontinue such Selling
Stockholder's disposition of Registrable Securities pursuant to the registration
statement relating to such Registrable Securities until such Selling
Stockholder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 1.3(h) and, if so directed by the Company, such Selling
Stockholder shall use its reasonable efforts to deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Selling Stockholder's possession, of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice. If the Company shall
give any such notice, the applicable time period mentioned in Section 1.3(b)
during which a registration statement is to remain effective shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 1.3(h), to and including the date when
each Selling Stockholder shall have received the copies of the supplemented or
amended prospectus contemplated by Section 1.3(h).
Section 1.4. Delay of Filing or Sales. (a) The Company shall have the
right, upon giving notice to the Selling Stockholders of the exercise of such
right, to delay filing a registration statement or to require such Selling
Stockholders not to sell any Registrable Securities pursuant to a registration
statement for a period of 180 days from the date on which such notice is given,
or such shorter period of time as may be specified in such notice or in a
subsequent notice delivered by the Company to such effect prior to or during the
effectiveness of the registration statement, if (i) the Company is engaged in
negotiations with respect to, or has taken a substantial step to commence, or
there otherwise is pending, any merger, acquisition, other form of business
combination, divestiture, tender offer, financing or other similar transaction,
or there is an event or state of facts relating to the Company, in each case
which is material to the Company (any of
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the foregoing, a "Material Activity"), (ii) such Material Activity would, in the
opinion of counsel for the Company, require disclosure so as to permit the
Registrable Securities to be sold in compliance with law, and (iii) such
disclosure would, in the reasonable judgment of the Company, be adverse to its
interests; provided that the Company shall have no right to delay the filing of
a registration statement or the selling of Registrable Securities if at any time
during the 180 days preceding the date on which such notice was given the
Company had delayed either the filing of a registration statement that included
Registrable Securities or the selling of Registrable Securities.
(b) The Company shall have no obligation to include in any notice
contemplated by Section 1.4(a) any reference to or description of the facts
based upon which the Company is delivering such notice. The Company shall pay
all Registration Expenses and all reasonable fees and expenses of counsel for
the Selling Stockholders with respect to any registration of Registrable
Securities or sales thereof that has been delayed for more than 30 days pursuant
to this Section 1.4.
Section 1.5. Underwritten Offerings. (a) Required Underwritten
Offerings. If requested by the underwriters of any underwritten offering of
Registrable Securities pursuant to a registration requested under Section 1.1,
the Company shall enter into an underwriting agreement with such underwriters
for such offering. Such agreement shall be reasonably satisfactory in substance
and form to each Selling Stockholder, the Company and the underwriters and shall
contain representations, warranties, indemnities and agreements as are
customarily provided or entered into by an issuer in underwriting agreements of
this type, including indemnities for the benefit of the underwriters to the
effect and to the extent provided to the Selling Stockholders in Section 1.6.
The Selling Stockholders shall be parties to such underwriting agreement and
may, at their option, require that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such Selling Stockholders.
(b) Piggy-Back Underwritten Offerings. If the Company at any time
proposes to register any of its securities under the Securities Act as
contemplated by Section 1.2 and such securities are to be distributed by or
through one or more underwriters, the Company shall, if requested by the Selling
Stockholders pursuant to Section 1.2 and subject to the provisions of Section
1.2(b), use its best efforts to arrange for such underwriters to include those
Registrable Securities designated by the Selling Stockholders among the
securities to be distributed by such underwriters. The Selling Stockholders
shall be parties to the underwriting agreement between the Company and such
underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such Selling Stockholders and that any or all of the
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conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
Selling Stockholders. No underwriting agreement (or other agreement in
connection with such offering) shall require any Selling Stockholder to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
Selling Stockholder, such Selling Stockholder's Registrable Securities and such
Selling Stockholder's intended method of distribution and any other
representation required by law.
(c) Holdback Agreements. (i) Each Holder agrees by becoming a holder
of Registrable Securities not to effect any public sale or distribution of any
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, including a sale pursuant to
Rule 144 under the Securities Act (or any similar provision then in force),
during the ten days before and the 90 days after any underwritten registration
pursuant to Section 1.1 or 1.2 has become effective, except as part of such
underwritten registration.
(ii) The Company agrees: (x) not to effect any public sale or
distribution of its equity securities or securities convertible into or
exchangeable or exercisable for any of such securities during the ten days
before and the 90 days after any underwritten registration pursuant to Section
1.1 or 1.2 has become effective, except as part of such underwritten
registration and except pursuant to (A) registrations on Form S-4 or S-8, or any
successor or similar forms thereto; (B) sales upon exercise or exchange, by the
holder thereof, of options, warrants or convertible securities; and (C) any
other agreement to issue equity securities or securities convertible into or
exchangeable or exercisable for any of such securities in effect on the date the
Selling Stockholders deliver to the Company the request to register, or include
in a registration, Registrable Securities under Sections 1.1 or 1.2, as the case
may be; and (y) to use all reasonable efforts to cause holder of its equity
securities or any securities convertible into or exchangeable or exercisable for
any of such securities, whether outstanding on the date of this Agreement or
issued at any time after the date of this Agreement (other than any such
securities acquired in a public offering, including any public sales pursuant to
Rule 144), to agree not to effect any such public sale or distribution of such
securities during such period, except as part of any such registration if
permitted.
Section 1.6. Indemnification. (a) Indemnification by the Company. In
the event of any registration of any securities of the Company under the
Securities Act pursuant to Section 1.1 or 1.2, the Company shall, and hereby
does, indemnify and hold harmless each Selling Stockholder, its directors,
officers, employees, agents and advisors, and each other Person, if any, who
controls such Selling Stockholder within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
each such
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Person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such securities
were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein or used in
connection with the offering of securities covered thereby, or any
amendment or supplement thereto,
(ii) any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or
(iii) any violation or alleged violation by the Company, or any of
its directors, officers, employees, agents or advisors, of any law or
regulation with respect to such registration or offer or sale of
Registrable Securities,
and the Company will reimburse such Person for any reasonable legal or any other
expenses incurred by it in connection with investigating or defending any such
loss, claim, liability, action or proceeding; provided that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement, or omission or
alleged omission, made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement, in
reliance upon and in conformity with written information prepared and furnished
to the Company by any Selling Stockholder specifically for use in the
preparation thereof; provided, further, that the Company shall not be liable to
any Selling Stockholder who participates as an underwriter in any such
registration or any other Person who controls such underwriter within the
meaning of the Securities Act, in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of such Person's failure to send or give a copy of the final
prospectus, as the same may be then supplemented or amended, to the Person
asserting an untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of the securities
to such Person if such statement or omission was timely corrected in such final
prospectus. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of any such Person and shall survive the
transfer of such securities by such Person. The Company shall not be obligated
to pay the fees and expenses of more than one counsel or firm of counsel for all
parties indemnified in respect of a claim for each jurisdiction in which such
counsel is required unless a conflict of interest exists between such
indemnified party and any other indemnified party in respect of such claim.
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(b) Indemnification by the Selling Stockholders. The Company may
require, as a condition to including any Registrable Securities held by a
Selling Stockholder in any registration statement filed pursuant to Sections 1.1
or 1.2, that the Company receive an undertaking reasonably satisfactory to it
from such Selling Stockholder, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section 1.6(a)) the Company, each
director, officer, employee, agent and advisor of the Company and each other
Person, if any, who controls the Company within the meaning of the Securities
Act (other than such Persons who are Selling Stockholders), with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from such registration statement, any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or supplement thereto,
if such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
prepared and furnished to the Company by such Selling Stockholder specifically
for use therein. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any such
director, officer, employee, agent, advisor or controlling Person and shall
survive the transfer of such securities by such Selling Stockholder. The
indemnity provided by each Selling Stockholder under this Section 1.6(b) shall
be only with respect to its own misstatements and omissions and not with respect
to those of any other seller or prospective seller of securities, and not
jointly and severally, and shall be limited in amount to the net amount of
proceeds received by such Selling Stockholder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subsections of this Section 1.6, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under this Section 1.6, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless a conflict of interest between such
indemnified and indemnifying parties exists in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, if the
indemnifying party is entitled to do so hereunder, the indemnifying party shall
not be liable to such indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of
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any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) Contribution. If for any reason the indemnity set forth in the
preceding subsections of this Section 1.6 is unavailable, or is insufficient to
hold harmless an indemnified party, other than by reason of the exceptions
provided therein, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other hand in connection with the offering of securities and the
statements or omissions or alleged statements or omissions which resulted in
such loss, claim, damage, or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party. No party shall be liable for contribution under this
Section 1.6(d) except to the extent and under such circumstances as such party
would have been liable to indemnify under this Section 1.6 if such
indemnification were enforceable under applicable law.
(e) Payments. The indemnification or contribution required by this
Section 1.6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred, subject to refund if the party
receiving such payments is subsequently found not to have been entitled thereto
hereunder.
Section 2. Other Provisions.
Section 2.1. Rule 144. The Company shall file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations promulgated thereunder (or, if the Company is not required to file
such reports, shall, upon the request of any holder of Registrable Securities,
make publicly available other information) and shall take such further action as
any Holder may reasonably request, all to the extent required from time to time
to enable such Holder to sell Registrable Securities without registration under
the Securities Act pursuant to (a) Rule 144 under the Securities Act, as such
rule may be amended from time to time, or (b) any similar rule or regulation
hereafter promulgated. Upon the request of any Holder, the Company shall deliver
to such holder a written statement as to whether it has complied with such
requirements.
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Section 2.2. Transfer of Registration Rights and Obligations. This
Agreement and the rights provided herein are for the benefit of all Holders in
addition to the Stockholder, and all such Holders may enforce their rights and
remedies directly against the Company. In the event the Company issues or
distributes, or proposes to issue or distribute, any shares or other securities
of another issuer to any Holder (including common stock and Class B common stock
of GenTek) and such shares or other securities would be Registrable Securities,
the Company shall use its best efforts to cause such issuer (including GenTek)
to deliver to the Holders a written instrument, in form and substance reasonably
satisfactory to the Holders, that such issuer is bound by and subject to all the
terms and conditions of this Agreement to the same extent as the Company and
that the rights and remedies provided herein to the Holders apply in all
respects to the Registrable Securities of such issuer.
Section 3. Definitions. Capitalized terms, as used in this Agreement,
have the following meanings:
Beneficial ownership and owned beneficially have the meanings given
to them in Rule 13d-3 under the Exchange Act.
Commission means the Securities and Exchange Commission.
Company has the meaning given to it in the Introduction.
Exchange Act means The Securities Exchange Act of 1934, and the rules
and regulations promulgated thereunder, all as the same shall be in effect at
the time.
Family Trusts has the meaning given in Recital A.
GenTek has the meaning given in Recital B.
GCG Common Stock and GCG Class B Stock have the meanings given to
them in Recital A.
Governmental Authority means any government, any political
subdivision, any governmental agency, bureau, department, board or commission,
any court or tribunal or any other governmental instrumentality, whether
federal, state or local, domestic or foreign.
Holder means any Person who owns, beneficially or of record, any
Registrable Securities.
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Material Activity has the meaning given to it in Section 1.4.
Participating Holder has the meaning given to it in Section 1.2(a).
Permitted Transferee (i) with respect to securities of the Company,
has the meaning given to it in the Company's certificate of incorporation as in
effect on the date hereof, assuming for this purpose that any reference to
"Class B Stock" in such definition is also a reference to such other securities
of the Company, (ii) with respect to securities of GenTek, has the meaning given
to it in GenTek's certificate of incorporation as in effect upon the
distribution of stock of GenTek to stockholders of the Company, assuming for
this purpose that any reference to "Class B Stock" in such definition is also a
reference to such other securities of the Company, and (iii) with respect to
securities of any other issuer, any Person who would have been a Permitted
Transferee of the Stockholder under the Company's certificate of incorporation.
Person means an individual, corporation, trust, joint venture,
association, partnership or other entity, or any governmental or political
subdivision or an agency or instrumentality thereof.
Registration Expenses means all expenses incident to the Company's
performance of or compliance with Section 1, including, (a) all registration,
filing and NASD fees, (b) all fees and expenses of complying with securities or
blue sky laws, (c) all word processing, duplicating and printing expenses, (d)
messenger and delivery expenses, (e) the fees and disbursements of counsel for
the Company and of its independent public accountants, including the expenses of
any "comfort" letters required by or incident to such performance and
compliance, (f) premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable Securities
being registered (if the Company elects to obtain any such insurance), (g) any
fees and disbursements of underwriters customarily paid by issuers or sellers of
securities, including counsel for the underwriters but excluding underwriting
discounts and commissions, and (h) reasonable costs and expenses incurred for
presentations to or meetings with prospective investors in connection with the
offer or sale of Registrable Securities in a public offering thereof; provided,
that (x) except as otherwise specifically provided herein, fees and
disbursements of counsel to one or more Selling Stockholders, and (y) transfer
taxes, and underwriting discounts or commissions and brokerage fees for the sale
of Registrable Securities, shall not be included as Registration Expenses and
shall not be paid by the Company.
Registrable Securities means any of the following securities owned,
beneficially and of record, by the Stockholder or any Permitted Transferee: (i)
any shares of GCG Common Stock or GCG Class B Stock owned, beneficially or of
record, by the
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Stockholder or any Permitted Transferee on the date hereof, and any securities
into which any such GCG Common Stock or GCG Class B Stock is converted or
exchanged (including a conversion of GCG Class B Stock into GCG Common Stock);
(ii) any shares of common stock or Class B common stock, or other securities, of
GenTek distributed as a dividend or other distribution in respect of the
securities in clause (i), and any securities into which any such common stock or
Class B common stock of GenTek is converted or exchanged (including a conversion
of Class B common stock of GenTek into common stock of GenTek); and (iii) any
shares or other securities issued or proposed to be issued with respect to any
of the securities in clause (i) or (ii) by way of a dividend or other
distribution (including a stock dividend or a dividend of securities of another
issuer), stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. It is expressly
stipulated that the foregoing securities shall be Registrable Securities only so
long as they are owned, beneficially and of record, by the Stockholder or
Permitted Transferees.
Registration Period has the meaning given to it in Section 1.1(a).
Requesting Holders has the meaning given to it in Section 1.1(a).
Securities Act means the Securities Act of 1933, and the rules and
regulations promulgated thereunder, all as the same shall be in effect at the
time.
Selling Stockholder means any Requesting Holder or Participating
Holder.
Stockholder has the meaning given to it in the Introduction.
Section 4. Miscellaneous.
Section 4.1. Termination. This Agreement shall terminate, except for
the provisions of Section 1.6 which shall survive any such termination, upon the
termination of the Registration Period; provided that if a Selling Stockholder
has made a request for registration pursuant to Section 1.1 or 1.2 prior to the
termination of the Registration Period and all obligations with respect to such
registration set forth in this Agreement have not been fulfilled or satisfied
(including for the payment of Registration Expenses or pursuant to Section 1.3),
this Agreement shall survive until the satisfaction or fulfillment of all such
obligations with respect thereto.
Section 4.2. Notices. All notices, consents, requests, instructions,
approvals and other communications provided for in, or in connection with, this
Agreement shall be in writing and shall be deemed validly given upon personal
delivery or one day after being sent by overnight courier service or by telecopy
(so long as for notices or other communi-
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cations sent by telecopy, the transmitting telecopy machine records electronic
confirmation of the due transmission of the notice), at the following address or
telecopy number, or at such other address or telecopy number as a party may
designate to the other parties:
If to the Company, to:
The General Chemical Group Inc.
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: [603- ]
Attention: Corporate Secretary
If to the Stockholder or any other Holder, to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/▇ ▇▇▇▇▇▇ Associates Inc.
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: [603- ]
Attention: General Counsel
Section 4.3. Choice of Forum. Each of the parties hereby irrevocably
submits to the exclusive jurisdiction of the courts of the State of New York and
the Federal courts of the United States of America located in the State, City,
and County of New York solely in respect of the interpretation and enforcement
of the provisions of this Agreement and of the documents referred to in this
Agreement, and in respect of the transactions contemplated hereby and thereby,
and hereby waives, and agrees not to assert, as a defense in any action, suit,
or proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suit, or
proceeding may not be brought or is not maintainable in said courts or that the
venue thereof may not be appropriate or that this Agreement or any such document
may not be enforced in or by such courts, and the parties hereto irrevocably
agree that all claims with respect to such action or proceeding shall be heard
and determined in such a court. Each of the parties hereby consents to and
grants any such court jurisdiction over the person of such parties and over the
subject matter of any such dispute and agrees that mailing of process or other
papers in connection with any such action or proceeding in the manner provided
in Section 4.2 in such other manner as may be permitted by law, shall be valid
and sufficient service thereof.
Section 4.4. Amendments; Waivers, etc. (a) Neither this Agreement nor
any term hereof may be amended, waived, discharged or terminated other than by
an
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instrument in writing, signed by the party against which enforcement of such
amendment, discharge, waiver or termination is sought.
(b) No failure or delay by any party in exercising any right, power
or privilege under this Agreement shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies provided herein shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 4.5. Assignment. Except as otherwise contemplated by Section
2.2, this Agreement shall not be assignable or otherwise transferable by a party
without the prior consent of the other parties, and any attempt to so assign or
otherwise transfer this Agreement without such consent shall be void and of no
effect. This Agreement shall be binding upon the respective successors and
assigns of the parties hereto.
Section 4.6. Third Party Beneficiaries. Except as provided in Section
2.2, nothing in this Agreement shall be construed as giving any Person, other
than the parties hereto and their successors and permitted assigns (including
Holders other than the Stockholder), any right, remedy or claim under or in
respect of this Agreement or any provision hereof.
Section 4.7. Severability. If any provision of this Agreement is held
to be invalid or unenforceable for any reason, it shall be adjusted rather than
voided, if possible, in order to achieve the intent of the parties hereto to the
maximum extent possible. In any event, the invalidity or unenforceability of any
provision of this Agreement in any juris diction shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction.
Section 4.8. Section Headings. The article and section headings of
this Agree ment are for convenience of reference only and are not to be
considered in construing this Agreement.
Section 4.9. Integration. This Agreement, and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement of the parties and supersede any and all prior agreements,
arrangements and understandings relating to the subject matters hereof and
thereof.
Section 4.10. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
which shall together constitute one and the same instrument.
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Section 4.11. Specific Performance. In the event of a breach or a
threatened breach by any party to this Agreement of its obligations under this
Agreement, any party injured or to be injured by such breach will be entitled to
specific performance of its rights under this Agreement or to injunctive relief,
in addition to being entitled to exercise all rights provided in this Agreement
and granted by law. The parties agree that the provisions of this Agreement
shall be specifically enforceable, it being agreed by the parties that the
remedy at law, including monetary damages, for objection in any action for
specific performance or injunctive relief that a remedy at law would be adequate
is waived.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
THE GENERAL CHEMICAL GROUP INC.
By:______________________________
Name:
Title:
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_________________________________
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